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that this is not a satisfactory test for criminal responsibility and surely not in the public interest where on the one hand schizophrenics may not be considered legally insane, yet the rules are stretched to cover diabetics and epileptics.

The danger in cases like the above is that a defendant clearly needs to be in care with the appropriate facilities yet is sentenced to a prison term, which raises the question as to whether mental disorder offenders should actually be diverted from the criminal justice system. Furthermore, in the event of conflicting medical evidence regarding mental disorder, juries are required to determine whether the defence of insanity or diminished responsibility can be used. This clearly raises concerns as to whether it is appropriate for inexperienced jurors to determine the complexities of mental disorder in the context of criminal responsibility.

Additionally, the criminal defence of insanity seems to be incompatible with the civil law position under the Act. The Rules have been stretched to cover epileptics and diabetics, a category that is highly unlikely to be committed under the Act, while omitting others that although not legally insane, would be committed according to established medical opinion. This highlights the fundamental issue of what actually constitutes a mental disorder for the purpose of determining legal criminal responsibility, which is clearly in a current state of confusion.

Sentencing procedure

Many criticisms can be made to the verdicts on insanity cases. The defence of insanity is rarely used, due to the strict sentencing procedure. If the defendant is found ‘guilty by reason of insanity’ then the judge would have no alternative but send him to an indefinite place in a secure hospital without a maximum sentence. In contrast, a conviction for murder or manslaughter would result in a determinate sentence of between 10 – 15 years. Most defendants would possibly prefer a straightforward conviction. It has been suggested that many defendants with mental problems do not raise the defence for these reasons and this means that such insane defendant are not receiving the treatment they need and instead are detained in prisons. There is also a potential conflict with Article 5 of the ECHR which states a person of unsound mind may only be detained where proper account is taken of objective medical evidence. There is likely to be a human rights challenge on indeterminate sentences. But, no cases have occurred in which this point has been argued.

reform

the Butler Committee recommended that proof of severe mental disorder should be sufficient to negate responsibility, this would create a presumption of no criminal responsibility where ther is proof of a severe mental disorder. This has been criticized as it assumes a lack of criminal responsibility simply because there is evidence of some sort of mental dysfunction. According to this view, the law should be guided to responsibility not mere psychiatric diagnosis.

This has raised questions whether mental disorder offenders should actually be diverted from the criminal justice system, in order to be dealt with more effectively.

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The Law Commission’s 10th programme of Law Reform includes a review of the insanity defence.

Given the vulnerability of the mentally ill and the increasing fre